News & Current Affairs

By Caitlin Holloway


Time travel is possible, and it goes by the name of SCOTUS

On 25 June 2022, I woke up briefly thinking I had time-travelled back 50 years. Turns out I hadn’t – the Supreme Court of the United States (SCOTUS) had just handed down a decision that will have the effect of outlawing or restricting access to abortion for approximately 33 million people in the United States of America. The decision is known as Dobbs v Jackson Women’s Health Organization (the Decision) and has since been the subject of outrage and large-scale protests all around the world.

To say I felt heartbroken for the people that will be affected by the Decision is an understatement. It seems unfathomable to me that, in 2022 (and in “the land of the free”), a person’s autonomy over their own body could be stripped away, particularly in a country without affordable healthcare and education, and where the very children the Decision is said to protect are shot in their own classrooms.

Many of you reading this might be wondering why you should care about the Decision here in Australia where generally, women can safely access abortions if they so choose. To that, I say whilst it is hard to imagine that any state or territory in Australia would outlaw abortion, that is not outside of the realms of possibility.

You may be surprised to learn that the right to abortion in Australia is not absolute, nor is it protected by legislation at a federal level (as is the case with any human right in Australia), and the process of appointing judges to the High Court of Australia is similar to the process in the United States. Whilst abortion is not illegal in any of our states and territories, the laws are all inconsistent and abortion is still part of the Criminal Code in Western Australia. There is no protection of human rights enshrined in the Australian Constitution or any legislation at a federal level.

Even if you don’t agree with the right to abortion generally, the Decision is about so much more than that – it is a stark reminder of what can happen when appointments to any superior court in the world become political, and the lines between our separate arms of government become blurred.

The Decision – what was the ruling in Roe v Wade and why is it overturned?

 The Decision has the effect of overturning the well-known decision of SCOTUS in the matter of Roe v Wade. Roe v Wade was a landmark ruling made by SCOTUS in 1973, which found that anti-abortion laws in Texas at the time were unconstitutional. It protected a pregnant person’s liberty to choose to terminate a pregnancy for nearly 50 years.

The legal argument at the heart of Roe v Wade concerned the interpretation of the Fourteenth Amendment to the United States Constitution, which provides that no state shall make or enforce any law which abridges the privileges or immunities of citizens of the United States.

In Roe v Wade, SCOTUS interpreted the Fourteenth Amendment in order to protect a pregnant person’s right to an abortion – the effect of that decision was that, whilst individual states could regulate abortion, they could not outlaw it entirely. Roe v Wade was controversial at the time – some in the legal community described it as a form of judicial activism and suggested that SCOTUS was putting words into the United States’ Constitution that simply weren’t there.

In handing down the Decision, SCOTUS took the view that the previous interpretation of the Fourteenth Amendment was wrong. That means that the principle in Roe v Wade has been overturned. There is no longer a right to an abortion under the United States Constitution, and states can legislate on the issue as they see fit. Following the Decision, a number of abortion “trigger laws” came into effect. At least seven (unsurprisingly southern) states all enacted legislation outlawing or restricting access to abortions – the Decision is estimated to affect about 33 million women.

You might be confused at this point – why did SCOTUS turn back on its own previous interpretation of the Fourteenth Amendment? To understand that, we need to look at the current composition of SCOTUS, and how the current judges (and judges generally) are appointed.

SCOTUS is the highest court in the United States – it is the equivalent to our High Court here in Australia. Judges in SCOTUS are nominated by the President, and then “confirmed” by the Senate. The effect of that process is that the appointment of judges is often very political over in the United States, and strongly influenced by “the government of the day”.

That process is not dissimilar to our process for appointing judges to the High Court of Australia. Here, the Attorney-General presents a nominee to the Cabinet, which provides a recommendation to the Governor-General, who approves the appointment. The process here in Australia is said to be apolitical and based upon merit. That said, it often takes place “behind closed doors” and judges do not go through a typical process of interviews and selection criteria. Whilst the process here does not attract the same level of attention, some critics here in Australia argue that the process lacks transparency and political accountability, which has the potential to result in a lack of diversity on the bench.

The idea behind having a variety of different judges on the bench of a superior court like SCOTUS or the High Court of Australia is to have a diverse bench, with a variety of experiences and backgrounds that reflects the diversity of the population it serves. Whilst that works on paper, if the process becomes political, we see a shift from the bench reflecting the population it serves to a bench that reflects the ideologies of the government that confirmed those appointments.

That is exactly what we are seeing in the United States at the moment. The current composition of SCOTUS is made up of a conservative majority. That is the result of Donald Trump’s appointments during the term of his presidency. Donald Trump appointed 3 judges to SCOTUS during his presidential term, most notably, Trump appointed Justice Amy Coney Barrett, who had previously expressed anti-abortion views, shortly prior to his loss in the 2020 Federal Election.

What is particularly concerning about that is the fact that SCOTUS judges do not face a mandatory retirement age, as is the case in Australia, meaning that we could see many decisions like this one for years to come.

Ultimately, outlawing abortions will not prevent them from happening. The criminalization of a particular thing does not make it go away – we see this with the criminalization of the use drugs, for example, just because the use of illicit substances is illegal doesn’t mean it doesn’t happen – it means that it happens in an unregulated space. One can only assume that the effect of the Decision will be that women will still seek abortions, but now, they may seek potentially unregulated and unsafe procedures. Their lives will be at risk as a result of the Decision, or they will face criminal prosecution.

Whilst on one view, SCOTUS simply took a “black and white” approach to the issue, that is, they effectively said “well, the constitution doesn’t mention abortions.” While that is true, in my view, the problem with that type of interpretation is that it lacks consideration of how a document drafted in 1787 should be interpreted in modern day. I personally would have thought that a reading of the Fourteenth Amendment with a “2022 lens” would protect the right to an abortion, and SCOTUS agreed back in 1973.